The accused was charged with uttering threats to cause death or bodily harm pursuant to Criminal Code, RSC, 1985, c. C-46, s. 264.1(1)(a) after stating that he would rearrange the face of a Crown prosecutor and kill the witnesses who had informed against him.

The statements were made to fellow detainees while the accused was being held in a detention facility awaiting trial for narcotics trafficking. The accused also told another detainee that he had hired a private detective to find the Crown prosecutor’s address and requested that the other detainee help him find the address of an officer-investigator.

Even though the statements were established at trial, the accused was acquitted. While the Quebec Court of Appeal upheld the acquittal, the Supreme Court set the acquittal aside and ordered a new trial in R v McRae, [2013] 3 SCR 931 [McRae].

The Acquittal

The trial judge entered an acquittal on the basis that the mens rea element of “knowingly” uttering a threat was not proven. The judge found that the accused had made the statements out of anger and frustration without intending that the statements would be communicated to the persons he threatened such that their actions might be influenced.

The Court of Appeal agreed with the trial judge and continued to rule that the Crown had also failed to establish the actus reus of the offence because the statements were uttered in the “closed circle” of the detention center and thus could not instill fear in the persons threatened.

In an unanimous decision jointly written by JJ. Cromwell and Karakatsanis, the Supreme Court ruled that both the trial judge and the Court of Appeal erred in law by finding that the elements of the offence had not been proven. The Court proceeded to take the opportunity to clarify the actus reus and mens rea elements of the offence of uttering threats.

Actus Reus

Whether a statement amounts to a threat of death or bodily harm is an objective question. The court will ask whether a reasonable person, in the circumstance of the case, would interpret the statement as a threat. The analysis starts with the plain and ordinary meaning of the statement. However, it is open to argue that the plain meaning of a statement is colored by the context in which it was made. For instance, a somewhat ambiguous statement like “he will get what he deserves” may require aggravating circumstances to be considered a threat. In contrast, a statement like “he is dead meat” is likely to be viewed as a threat in absence of mitigating circumstances.

The Crown does not have to prove that the person threatened was aware of the threat or intimidated by it. Although evidence that the target of the threat actually felt threatened might help prove their case, it is not determinative. The question is what a reasonable person would perceive as a threat, not what a thin-skinned person would perceive as a threat.

Nor does the Crown need to prove that the threat was directed towards a specific person. A threat against an ascertainable group is sufficient. Thus, the statement “I am going to kill the next white man I see” could reasonably be perceived as a threat.

Mens Rea

Mental fault is established by proving the statement was subjectively intended to intimidate or be taken seriously. Given the difficulty of ascertaining what the accused was actually thinking, the Crown will usually have to rely on inferences drawn from the circumstances to establish mens rea.

The Crown does not have to prove that the accused intended to communicate the threat to the person threatened or to carry out the threat. Telling Alice that you intend to kill Bob is still a threat, even if you have no intention to make the threat known to Bob. Similarly, it was no defense that the accused uttered his statements within the “closed circle” of the detention center, rather than to the prosecutor or witnesses directly.

Conclusion

The Court of Appeal compared the accused’s statements to a threatening letter that was never mailed. It is true that people sometimes get angry or frustrated and say things they don’t mean, especially if they believe the statement is being made in circumstances of privacy. An overly broad interpretation of the offense of uttering threats might, as the Court of appeal suggests, lead to the criminalization of the mere expression of a thought.

On the other hand, credible threats of violence have significant effects upon the people they are communicated to, even if they are not the direct object of the threat. Threats against witnesses, police officers and prosecutors are a very serious problem and undoubtedly undermine the administration of justice. Furthermore, even if the threat is not directly communicated, that does not mean it won’t eventually be indirectly communicated, as was the case in McRae.

While the accused may not have “mailed the threatening letter,” he did pass it around to his friends. The question of whether he subjectively intended for it to be taken seriously will have to wait for a new trial.